Wisconsin Prepares For Another Gerrymandering Trial

Every 10 years, the party in control gets to redraw Wisconsin's political boundaries to reflect the latest U.S. Census figures.

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WUWM's Marti Mikkelson reports on Wisconsin's gerrymandering trial, which is scheduled to go before a panel of federal judges in Madison in July.

Wisconsin’s gerrymandering case is back in the public eye. It’s scheduled for trial before a federal court in Madison in July. A panel of three judges will decide whether Republicans, who control the Legislature, illegally drew the state’s political boundaries in 2011 to benefit their party.

Every 10 years, the party in control gets to redraw the state’s political boundaries to reflect the latest U.S. Census figures. In 2011, it was newly re-elected Republican Gov. Scott Walker and a GOP majority in the legislature.

New Democratic Gov. Tony Evers has proposed in his budget a different process for 2021. Under it, a nonpartisan legislative agency would redraw the maps and then submit them to the Legislature for an up-or-down vote, with no amendments.

Several people supported the idea at a recent public hearing on Evers’ biennial state budget proposal in Oak Creek, including Nancy Kaplan. She points to a 2019 Marquette Law School poll, which she says shows redistricting is a nonpartisan issue.

Evers’ plan is based on the method that Iowa has been using since 1980. And, while those testifying at the state budget hearings are looking ahead a few years, the federal trial this summer would judge the way the 2011 maps were drawn — and possibly order them reconfigured by the 2020 presidential election. One group interested in the outcome is Common Cause in Wisconsin. Executive Director Jay Heck says he hopes the judges throw out the current maps.

“They were drawn in such a way that it made it impossible for people who voted for one political party to ever see a majority of that party gain control either in the Legislature or in Congress, because of the way that one party was packed into a district and the other party was spread out so as to assure victory,” he says.

The challenge was originally brought by a handful of Democratic voters in Wisconsin. A panel of federal judges struck down the Republican-drawn maps in 2016, and the GOP appealed to the U. S. Supreme Court. The high court sent the case back to the federal court in Madison, saying the plaintiffs lacked legal standing, and failed to prove that individual rights were violated.

Rick Esenberg is an attorney for the Wisconsin Institute for Law and Liberty. It has previously filed “friend of the court” briefs in the case. Esenberg argues the current maps are constitutional, because they reflect the relative concentration of Democratic and Republican voters geographically.

“In the state of Wisconsin and in many other states, the Democratic voters tend to be more heavily geographically concentrated than Republican voters. The plaintiffs say it’s too much, but the problem is that there’s no standard to determine how much is too much,” he says.

The U.S. Supreme Court recently heard arguments in two other cases: North Carolina, where Republicans are accused of overreaching and Maryland, where a lawsuit has been filed against Democrats who oversaw the redistricting process.

The court is expected to rule in those cases by the time Wisconsin’s trial begins in July. UW-Madison Political Science Professor Barry Burden says those rulings could have an impact on the state’s case.

“If the court for example, were to rule in a majority opinion that the Maryland and North Carolina districts should be redrawn in some way because they violated some constitutional rights, that might lead to a remedy being proposed in Wisconsin without a full trial. If the Supreme Court instead issues a kind of mishmash of different opinions without a clear majority on one side or the other, the trial might go forward trying to resolve some issues that didn’t come up in the Supreme Court opinions,” he says.

Burden says there have been many redistricting lawsuits since the 2010 Census. The most noteworthy outcome came from Pennsylvania, where its state Supreme Court last year, struck down maps that Republicans had drawn. The court ended up redrawing the boundaries.

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The Supreme Court appeared sharply divided on the question of whether there's any limit on what the courts can impose on partisan redistricting, also known as gerrymandering, with Justice Brett Kavanaugh, the newest member of the court, appearing at least somewhat conflicted.

"I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy," Kavanaugh told the lawyers arguing the case, "and I'm not going to dispute that."

A year and a pivotal justice's retirement after the high court dodged the question, those seeking to break the political stranglehold over legislative redistricting are urging the justices to draw a line beyond which the Republican and Democratic parties cannot go in entrenching their political power, sometimes for decades at a time.

Attorneys looking to throw out Wisconsin's legislative boundaries filed an amended complaint in federal court on Friday. It adds more voters as plaintiffs in a lawsuit, after the U.S. Supreme Court refused to consider the case this past summer.

A dozen voters filed a federal lawsuit in 2015, alleging Republicans unconstitutionally consolidated their power when they redrew the boundaries in 2011. A federal three-judge panel agreed, but the state justice department appealed to the U.S. Supreme Court.

The U.S. Supreme Court’s long-awaited ruling on Gill v. Whitford came down Monday. But the court didn't rule on the constitutinality question surrounding the claims of illegal partisan gerrymandering in the Wisconsin redistricting cast.

Instead, the court ruled that the plaintiffs did not have legal standing to bring the suit. The justices threw the case back to lower courts, where the plaintiffs could adjust their case accordingly.

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